Citation Nr: 1334092 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 07-38 986 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from August 30, 1974 to November 21, 1974 with 48 days lost during that period. He also had service with the Army National Guard of Pennsylvania with a period of active duty for training (ACDUTRA) and advanced individual training from March 2, 1981 to September 4, 1981. This case comes to the Board of Veterans' Appeals (Board) on appeal from a September 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for hearing loss and tinnitus. The Board notes that the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file. The issue of entitlement to service connection for traumatic brain injury has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required on his part. FINDING OF FACT The preponderance of the competent and credible evidence shows that the Veteran's tinnitus was not present in service or until many years thereafter and is not related to service. CONCLUSION OF LAW The requirements for establishing service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a letters sent in January 2006 and March 2006. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The letter also provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disability under consideration, pursuant to the recent holding in Dingess v. Nicholson, 19 Vet App 473 (2006). The claim was readjudicated in the September 2012 supplemental statement of the case. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service treatment records, and private and VA treatment records have been obtained. Also, pursuant to the Board remand directive, the RO/AMC attempted to identify and obtain relevant private treatment records. The RO/AMC sent correspondence to the Veteran and requested that he complete and return Authorization and Consent to Release Information forms for any relevant private treatment records not already in the claims file, however, the Veteran failed to respond. In addition, the Veteran was provided with an appropriate VA examination in connection with the claim herein decided. He has not indicated there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and the RO/AMC has substantially complied with the previous remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was provided with a meaningful opportunity to participate in the claims process and has done so by providing evidence and argument. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Service Connection The Veteran contends that his current tinnitus is due to an immersion heater explosion that threw him backwards in July 1997. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a), (d). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In this case, competent evidence shows that the Veteran has tinnitus. Specifically, the Veteran reported on VA examinations that he had recurrent bilateral tinnitus. The Veteran is considered competent to report the presence of tinnitus, and there is no indication from the record that his account of current tinnitus is not credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Thus, the presence of current tinnitus is established. Having determined that the Veteran currently has a diagnosis of tinnitus the remaining question before the Board is whether there is nexus between the currently diagnosed tinnitus and his service. While the Veteran attributes his tinnitus to service, it does not necessarily follow that there is a relationship between any tinnitus and his service. In this case, the Board finds that the contemporaneous in-service evidence of record, considered with the post-service evidence of record, is of more probative and persuasive value that the Veteran's assertions. Savage v. Gober, 10 Vet. App. 488 (1997); Barr v. Nicholson, 21 Vet. App. 303 (2007). The service treatment records contain a clinical treatment report in July 1997 that documented an explosion during which the Veteran lost consciousness as a result of the blast when he hit a tree. A clinical assessment of concussion was noted. He was released to light duty for five days. Thereafter, in a February 1999 report of medical history he denied hearing loss, ear trouble, or head injury. The service treatment records do not show complaints or findings of tinnitus, and in fact show that the Veteran denied any hearing problems apart from a one-time complaint of ringing in his ears in June 1989 after a falling pole hit his helmet. Even if the Veteran did experience temporary buzzing or ringing in the ears in 1989 during reserve service, the service treatment records clearly show that his symptom had resolved shortly thereafter, as subsequent reports of periodic audiological evaluations are negative for complaints or findings of tinnitus. After service, the Veteran reported tinnitus. However, his reports regarding the onset and circumstances associated with tinnitus have been internally inconsistent. In this regard, on VA audiological examination in July 2006, the Veteran reported bilateral tinnitus since 1993, which he attributed to poor fitting ear protection while in service. Thereafter, in a May 2007 statement and subsequent statements, the Veteran reported onset of tinnitus following the July 1997 immersion heating explosion while on ACDUTRA. On VA audiological examination in June 2009, the Veteran reported onset of tinnitus 5 years earlier, not associated with any specific event. Thereafter, on VA audiological examination in November 2011 the Veteran stated that he was unable to determine the onset of tinnitus, although he asserted that the condition had been present for over five years. Additionally, while on VA examination in July 2006 the Veteran denied civilian occupational or recreational noise exposure, such is not consistent with information provided in subsequent records. In this regard, a VA clinical treatment note in June 2009 and the November 2011 VA examination report recorded a history of recreational noise exposure from hunting without the use of hearing protection, as well as 3 months of civilian noise exposure using hearing protection while working at a plastic factory and a wood factory. Significantly, both the July 2006 VA examiner and the June 2009 VA clinician questioned the Veteran's credibility in reporting symptoms and noted possible malingering. In deciding this claim, the Board has carefully considered the Veteran's own lay assertions as to the onset of tinnitus. The Board finds, however, that assertions of tinnitus arising during a period of active service are not credible. Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007). In determining credibility, the Board may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Here, the Veteran did not present a credible history concerning his tinnitus as his assertions of in-service onset and continuing symptoms contradict other evidence of record, to include post-service medical evidence and the Veteran's own statements rendered in connection with treatment. Accordingly, the Board does not find the Veteran's assertions credible. Moreover, a VA examination was scheduled to request an opinion concerning the relationship between the Veteran's tinnitus and service. On VA audiological examination in November 2011, the Veteran described tinnitus predominantly in the left ear, two to three times a week, and lasting four to five hours. The Veteran reported several incidents of head trauma incurred in a car accident, bicycle accident, and an explosion in service. He endorsed military noise exposure with use of ear protection, as well as 3 months of civilian noise exposure using hearing protection while working at a plastic factory and a wood factory. Additionally, the Veteran endorsed recreational noise exposure as a hunter, without the use of ear protection. There was also a family history of hearing loss, to include his parent and brother. He indicated that his brother's hearing loss was congenital. Following a review of the claims file and an examination of the Veteran, the examiner opined that the Veteran's tinnitus was less likely than not caused by or the result of military noise exposure. The examiner based the opinion on the fact that the Veteran was unable to specify onset of the condition. The VA examiner's opinion is based on review of the claims folder and provided an adequate rationale for the conclusion. There is no medical opinion to the contrary. In summary, as the competent and credible evidence does not establish tinnitus during a period of active service, and the only medical opinion of record indicates tinnitus is less likely than not related to service, the preponderance of the evidence is against the claim, and service connection is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for tinnitus is denied. REMAND While further delay is regrettable, the Board finds that additional development is required concerning the claim for service connection for hearing loss. The Veteran contends that his current hearing loss is due to head trauma incurred in an immersion heater explosion that threw him backwards in July 1997. The Veteran was afforded a VA audiological examination in July 2006. While the reported test results showed bilateral hearing loss, the reliability of the test results was determined to be poor, because the Veteran was found to be purposely exaggerating the degree of his hearing loss. Accordingly, the examiner did not render a medical opinion regarding the etiology of the Veteran's hearing loss. In October 2011 the Board remanded the claim to obtain a VA audiological examination and medical opinion addressing whether any left or right ear hearing loss was etiologically related to service, to include the July 1997 explosion that occurred while on ACDUTRA. Pursuant to the remand instruction, the Veteran was scheduled for a VA examination in November 2011. On examination, the Veteran reported onset of his hearing problems following the July 1997 injury that occurred while on ACDUTRA. Following a review of the claims file and an examination of the Veteran, the examiner concluded that the Veteran's hearing loss did not preexist service. The examiner further opined that the Veteran's hearing loss was less likely than not due to noise exposure in service. However, while the examiner noted a history of head trauma during an explosion in July 1997, she failed to address the Veteran's contention that his hearing loss is the result of the July 1997 explosion while on ACDUTRA. Once VA undertakes an examination or etiological opinion, even if not required to do so, an adequate one must be produced. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board finds that an addendum to the November 2011 examination is needed regarding whether the Veteran's hearing loss is etiologically related to the July 1997 explosion that occurred while on ACDUTRA. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Relevant ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain, either electronically or physically, all treatment records relevant to the Veteran's claim for service connection for hearing loss from the VA Medical Center dated after April 2012. 2. Return the claims file to the examiner who conducted the November 2011 VA audiological examination, if available, to obtain an addendum opinion. If the original examiner is not available, forward the claims file to an appropriate examiner to obtain the requested opinion. If a new examination is deemed necessary, one should be scheduled. Following review of the claims file, the examiner should provide an addendum opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current hearing loss disability is etiologically related to the July 1997 heater explosion during ACDUTRA wherein he hit his head. The examiner should explain why or why not. 3. After the development requested above as well as any additional development deemed necessary has been completed, the record should again be reviewed. If the benefits sought on appeal remain denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs